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McDaniel v. Vilsack

United States District Court, District of Columbia

September 23, 2016

MARCUS MCDANIEL, Plaintiff,
v.
THOMAS VILSACK, Secretary of USDA, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan, Judge United States District Court

         Plaintiff Marcus McDaniel worked as a Safety & Occupational Health Manager for the Natural Resources Conservation Service (“NRCS”) at the U.S. Department of Agriculture (“USDA”) from August 2008 to July 2009. Compl., ECF No. 1, ¶ 1. Mr. McDaniel (African-American) was terminated during his one-year probationary period for unsatisfactory performance and behavior. Id. On May 4, 2012, Mr. McDaniel filed a Complaint against the Secretary of Agriculture, Thomas Vilsack (“Secretary” or “Defendant”), alleging that Mr. McDaniel's supervisors discriminated against him because of his race and sex by harassing him and terminating his employment in violation of Title VII of the Civil Rights Act of 1964, 43 U.S.C. § 2003, et seq., and 42 U.S.C. § 1981. Id. The Secretary has moved for summary judgment on the basis that Mr. McDaniel was lawfully terminated during his one-year probationary period for legitimate, non-discriminatory reasons, including his aggressive and unprofessional behavior. Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s Mem. Supp.”), ECF No. 32 at 7. Defendant further maintains that Mr. McDaniel is unable to prove the stated reasons for his termination were actually pretext for racial or sexist animus. Id. 23-24. Upon review of Defendant's motion, the responses and replies thereto, and for the reasons discussed below, Defendant's Motion for Summary Judgment is GRANTED.[1]

         I. BACKGROUND

         A. Mr. McDaniel's employment at NCRS

         Mr. McDaniel started working for NCRS on August 18, 2008 as its Safety and Occupational Health Manager, subject to a one-year probationary period. Compl. ¶ 4. Ms. Sandra McWhirter (African American) served as Mr. McDaniel's immediate supervisor and Mr. John Glover (African American) served as his second level supervisor. Id. ¶ 7. Mr. McDaniel got along well with Ms. McWhirter and Mr. Glover. Id. In April 2009, Mr. McDaniel received a positive review from Ms. McWhirter. See ECF No. 35-10 at 1-8.

         Mr. McDaniel claims that “everything changed” in January 2009 when Mr. Glover, who served as the head of Human Resources (“HR”), was replaced by Ms. Eloris Speight (African American) who “took an active dislike to plaintiff.” Id. ¶ 8. One point of contention between Ms. Speight and Mr. McDaniel was her concern about where his position should fall within the USDA's organizational structure. McDaniel 2014 Dep., ECF NO. 32 at 80; 26: 6-20. Ms. Speight even directed Mr. McDaniel to research the question. Id. 73:21-22. Mr. McDaniel perceived Ms. Speight's inquiry as a threat, alleging that Ms. Speight “threateningly pointed out to plaintiff that she could fire him at any time-and for no reason at all-during his probationary period . . . .” Id. ¶ 10. In June 2009, Ms. McWhirter was replaced by Ms. Yevette Gray (African American) and Ms. Letitia Tommer (African American). After this transition, Mr. McDaniel alleges that “things became even more hostile” for him. Pl.'s Mem. Opp. at 3.

         The remainder of Mr. McDaniel's Complaint includes sparse factual allegations. Mr. McDaniel summarily argues that “defendant, through his subordinate managers at the NRCS, discriminated against plaintiff based on his race and sex by (i) harassing him on the job (ii) preventing him from performing his duties and responsibilities, and (iii) terminating his employment with USDA and removing him from the Federal Service effective July 31, 2009.” Compl. ¶ 16. Although not alleged in his Complaint, Mr. McDaniel testified during his deposition that Ms. Speight told him that he is not white and should “stop acting white.” McDaniel Deposition, ECF No. 32 at 82; 32: 3-13. Ms. Speight denies ever making such a statement. Speight Dep., ECF No. 35 at 23. Mr. McDaniel also testified that his termination was motivated by race and his gender because:

The fact that me being articulate and well-versed in what I was doing was either unacceptable to Eloris, Yvette, and Tish, or unbelievable. So I assumed they had a common mind frame, like if - it can't be what it looks like, so why are we to assume anything other than what Eloris is telling us, or why do we care, why don't we look into it for ourselves.

McDaniel 2011 Dep., ECF No. 32, 12-13.

         B. Concerns about Mr. McDaniel's aggressive behavior and professionalism

         Numerous colleagues expressed concern about Mr. McDaniel's aggressive and unprofessional behavior. Def.'s Mem. Supp., ECF No. 32 at 3-7. The reported incidents generally involved Mr. McDaniel acting unprofessionally by raising his voice to superiors, making inappropriate comments and displaying disrespectful body language during meetings. See e.g. Deposition of Denise Cooke (“Cooke 2011 Dep.”), ECF No. 32 at 25, Ex. 2 at 117:18 - 118:1 (“I heard his loud voice more than one time.”); Deposition of Eloris Speight (“Speight 2011 Dep.), ECF No. 32 at 37, Ex. 3 at 92:16 - 92:21 (testifying that Mr. McDaniel often raised his voice to the point that Ms. Speight felt that “she was not going to take his disrespect, you know, any longer.”). One incident was so disturbing that agency employees discussed whether they should call security. See e.g. Deposition of Sandra Detter (“Detter 2011 Dep.”), ECF No. 32 at 53, Ex. 4 at 59:5-59:17 (“ I remember [] when I heard a loud and angry male voice coming through the wall from the next - from the office next door . . . the incident was unusual because it was not normal to be able to hear voices through the wall.”); Id. at 61:13-61:15 (“Well, I wonder[ed] what's going on, Denise said you need to call - should we call security, you know, we don't know - we didn't know what to do.”). Mr. McDaniel does not deny that he raised his voice to his supervisors, but testified that “I would not have said anything in a threatening manner.” Deposition of Marcus McDaniel (“McDaniel 2014 Dep.”), ECF No. 32 at 86, Ex. 9.

         Several female staff members testified that they felt “afraid” of Mr. McDaniel, particularly because they believed he was allowed to carry a gun for his duties. Cooke Dep., ECF No. 32 at 34; 121:11-122:10 (“Q. Then on what basis where you afraid of him? A. Because I heard him expressing a loud voice. [] He seemed to have something pinned up or built up inside of him and I felt intimidated.”) Some staff members created an escape plan in the event Mr. McDaniel “snapped” and turned violent. Cooke 2011 Dep. at 119:8-119:19 (“He put me in fear that he might snap” and “if he snapped, I'm not sure what he might do.”).

         Mr. McDaniel was also prone to acting unprofessionally in meetings. Detter 2011 Dep., ECF No. 32 at 55; 18:10-18:19; 23:14-23:17. Mr. McDaniel would throw himself back in his chair, roll his eyes, and sigh. Id., ECF No. 32 at 59; 54: 5-10 (“at the time, I had a teenage daughter at home - and he was acting just like her, and I thought it was just disrespectful.”). Several employees also observed and reported Mr. McDaniel's rude and inappropriate behavior towards his supervisor, Ms. Speight. Deposition of Rebecca Rogenbuck (“Rogenbuck Dep.”), ECF No. 32 at 6, 60:18-61:13 (“Q: And when he told you that he said this to her, what was your opinion of that communication by Mr. McDaniel? A: I thought that was a rude thing to say to a supervisor.”).

         C. Mr. McDaniel's termination

         Toward the end of Mr. McDaniel's probationary period, Ms. Speight conducted a meeting of his current supervisors and other HR personnel to discuss whether Mr. McDaniel passed his probationary period. Speight Dep., ECF No. 32 at 42 -43. At that meeting, no disagreement was expressed with the recommendation to terminate Mr. McDaniel, whose termination letter stated, in part:

Based on feedback received from management, it has been determined that your conduct in performing your job has been unsatisfactory. During your short tenure with the Agency, you have demonstrated an unwillingness to accept direction and accomplish work items as prescribed. Moreover, the manner in which you have behaved in dealings with management and other agency personnel related to such matters as Environmental Management Systems (EMS), interagency contract acquiring Employee Assistance Program (EAP) and Office of Workers' Compensation (OWCP) services, etc., has been challenging and unprofessional. It is our determination that during your probationary period you have failed to demonstrate your potential to be an asset to the agency.

         McDaniel Termination Letter, ECF No. 32-1 at 72.

         In support of this litigation, Mr. McDaniel obtained affidavits from Mr. Glover and Ms. McWhirter. Glover Aff., ECF No. 35, Ex. 12; McWhirter Aff., ECF No. 35, Ex. 13. Mr. Glover states that “[d]uring the time I was his second line supervisor, I had no issues or concerns with [Mr. McDaniel's] performance, conduct or attitude.” Glover Aff. at 2. Ms. McWhirter noted that she gave Mr. McDaniel a positive April 2009 review, rating him “fully successful.” McWhirter Aff. at 3. Ms. McWhirter also stated that she never received any Complaints about Mr. McDaniel until Ms. Speight became Acting Director. Id. Both Mr. Glover and Ms. McWhirter state that they do not have a basis to conclude that Mr. McDaniel was terminated because of his race or sex. Glover Aff. at 5; McWhirter Aff. at 6.

         II. DISCUSSION

         A. Summary ...


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